IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51121

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN CARLOS FUENTES-ULLOA,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-1385-1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:* 

Juan Carlos Fuentes-Ulloa challenges his guilty-plea conviction for 

illegal reentry under 8 U.S.C. § 1326. For the first time on appeal, he contends

his enhanced sentence under § 1326(b)(2) (removal following aggravated-felony 

conviction) must be vacated because his indictment failed to allege, and the 

Government failed to prove, his prior aggravated-felony conviction. Fuentes 

maintains, following Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2013

Lyle W. Cayce

Clerk

 

 Case: 11-51121 Document: 00512484133 Page: 1 Date Filed: 12/30/2013
No. 11-51121

v. United States, 133 S. Ct. 2151 (2013), his prior conviction, which increased 

his maximum sentence from two to either 10 or 20 years, is a fact essential to 

the penalty and is therefore an element of the offense. 

Because Fuentes raises the issue for the first time on appeal, review is 

only for plain error. For reversible plain error, Fuentes must show a clear or 

obvious forfeited error that affected his substantial rights. See Puckett v. 

United States, 556 U.S. 129, 135 (2009). Even if he shows such reversible plain 

error, we have the discretion to correct the error, but should do so only if it 

seriously affects the fairness, integrity, or public reputation of the proceedings. 

See id. Fuentes fails, however, to show any error. 

In Apprendi, the Court held: “Other than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt”. 

530 U.S. at 490. Because it created an exception for prior convictions, Apprendi

did not overrule Almendarez-Torres v. United States, which held § 1326(b)(2) 

was a sentencing factor, rather than an element of the offense, and, thus, need 

not be alleged in the indictment. Id. at 489-90; Almendarez-Torres, 523 U.S. 

224, 226-27 (1998). “This court has patiently entertained the identical 

argument in countless cases. . . . [however, b]ecause the Supreme Court treats 

Almendarez-Torres as binding precedent, [Fuentes’] argument is fully 

foreclosed from further debate”. United States v. Pineda-Arrellano, 492 F.3d 

624, 625 (5th Cir. 2007).

In Alleyne, the Supreme Court extended Apprendi’s reasoning to 

statutory minimum sentences, holding: “Facts that increase the mandatory 

minimum sentence are therefore elements and must be submitted to the jury 

and found beyond a reasonable doubt”. Alleyne, 133 S. Ct. at 2158. The 

2

 Case: 11-51121 Document: 00512484133 Page: 2 Date Filed: 12/30/2013
No. 11-51121

Supreme Court specifically noted, however, that its decision did not revisit the

Almendarez-Torres exception. Id. at 2160 n.1. 

AFFIRMED.

3

 Case: 11-51121 Document: 00512484133 Page: 3 Date Filed: 12/30/2013